Document Information

Date: 1975-10-23
By: R.G. Robertson
Citation: Memorandum from R.G. Robertson to Prime Minister (23 October 1975).
Other formats: Click here to view the original document (PDF).

c.c.: Mr. Pitfield
Mr. Carter
Mr. Jodouin
Mrs. Reed
Mr. Hurley
Miss Macdonald

CONFIDENTIAL

October 23rd, 1975.

MEMORANDUM FOR THE PRIME MINISTER

Next steps on the
“patriation” of the constitution

Thank you for your comments on my
memorandum of October 10. Since receiving them,
we have been giving further thought to the best
way to move ahead in order to avoid the risk
you mention that continued exchanges might “drag
us on forever”.

The substance of the proclamation

I am attaching herewith, in English
and in French, a copy of the “form for a proclamation”
as fully drafted to include the full text of the
parts on the amending formula, the Supreme Court and
the language rights. The document is a fairly
impressive one. While it might be as well not to
point it out — at least not at this stage — it now
contains about three—quarters of the Victoria Charter
— plus the new elements. It should have a fair bit
of attraction for pretty well all the parties. For
the federal government, there would be the fact of
“patriation”, establishment of the amending procedure
and a firmer foundation than we now have for language
rights and protection of the French culture. For
Quebec, there would be the same linguistic and Cultural
advantages plus elements of “constitutional guarantee”.
For seven of the ten provinces, there would be the
provision on regional disparities. For all of the
provinces, apart from Quebec, there would be some
attraction in having this constitutional problem out
of the way and there would be a gain in the provisions
about the Supreme Court. (In respect of this, a last
minute review indicated that we had omitted an
Article in the Victoria Charter which was in another
“Part” than the Supreme Court provisions. It is now
in as Article 28A. The Articles will be re-numbered
in a new typing.)

2. CONFIDENTIAL

You will note that the text provides
in Article 7 for Chouinard’s first point — that the
proclamation would be a part of the “Constitution
of Canada” and as such subject to the amending
procedure.

Article 39 (which was “paragraph 6”
in the earlier text) does not have reference to
“social policy”. In your notes, you said you
would be prepared to go along with this addition
“as a last concession” at the end of negotiation.
I am wondering whether we ought not to be now
at the end of negotiation so far as the discussions
with Mr. Bourassa are concerned. It seems to me
that what we could do would be to add the words
“and social policy”, point out that we have done this,
and take the position that the document, as it stands,
is as far as you are prepared to go in meeting the
several points they have raised. It seems to me
that it would be better to take that position about
a text that is thoroughly defensible than to take it
with the knowledge that there really is no very strong
reason to refuse to add a reference to social policy.
If you agree, I would therefore be disposed to add the
three words to Article 39 and stand firm at that point
on the text. It would help, I think, to exclude
any attempt to drag in “agriculture” as we know they
would like to do.

The text of course has nothing whatever
about the spending power. I doubt very much if
Mr. Bourassa has thought through all the problems
of recapturing a fiscal equivalent from the taxpayers
of the province. Even if he has, I am quite certain
that other provinces will resist as strongly as they
did during the constitutional discussions any formula
of this kind. They will want the fiscal equivalent
paid to the provincial governments. If there is, as
I am sure there is, a certainty of much wrangling,
the time to have it is, as you say, after the
constitution has been repatriated.

We think the preamble to the proclamation
could be made rather better. Changes in it have not
fully kept pace with changes in the substance of the
document. However, there are bound to be suggestions
to change the preamble when we get to discussion with
the other provinces. We think, therefore, that the

3. CONFIDENTIAL

best course is to leave the preamble as it now stands
while at the same time working here on a better
formulation that we can have ready in response to
suggestions at some future time.

In other words, subject to your view
on the addition of “and social policy” to Article
39, I think we now have the text of a proclamation
that we could send to Mr. Bourassa, and possibly
also to other Premiers, to move into the next phase
of the “patriation” operation.

The question of a reference to the Courts

As you say in your note, it is very
apparent that Mr. Bourassa is wildly optimistic
in thinking that a reference to the Courts could
be accomplished in “quelques mois”. Apart from
the considerations of timing, we are, on further
assessment in the FPRO, strongly of the view that
a Court reference would be a mistake.

Mrs. Reed, on behalf of the Department
of Justice, thinks that a reference to the Court
“would not be in the least helpful”. Even if a
question could be posed in an appropriate legal
way (about which she thinks there would be great
difficulty), she thinks the answer would almost
certainly be one that would lack the conclusive
quality that would help Mr. Bourassa. In her
view, it would be likely to be to the effect that
the Article (Article 37) contains “a non-enforceable
obligation and is directory only”. While the
“directory” indication would be very important so
far as a constitutionalist is concerned, it would
seem inconclusive to commentators and critics and
they would focus on the “non-enforceable” aspect
of any decision.

Mr. Hurley shares Mrs. Reed’s concerns
and feels that, apart from the problem of delay,
a Court reference would be more likely to prejudice
than to help the success of the “patriation”
exercise. Both Mrs. Reed and Mr. Hurley feel that
if a Court reference were to be made it should be
to the Supreme Court direct since a reference to
the Court of Appeal of Quebec would, at best,

4. CONFIDENTIAL

be inconclusive. To go there would simply be to
add to the hazard of an inconclusive opinion and
to lose time.

Next steps toward “patriation”

It seems to me that what we want now is to
get the attached text of the proclamation to
Mr. Bourassa forthwith, to indicate that it is as
far as you are prepared to go in modifications and
that you want to move ahead in the discussions with
the other Premiers who have, so far, had no follow-up
to the initial discussions I had with them (except
with Mr. Barrett) in May, June and July. I have
already had inquiries from several officials which
indicate that Premiers are wondering just where things
stand.

If Mr. Bourassa is still absent in Iran,
I could talk to Chouinard and have a messenger go to
Quebec with copies of the proclamation. Whenever
Mr. Bourassa is back, it would obviously be very
desirable if you could have a further word with him
as a follow-up to your telephone conversation of
October 16. It would help greatly in making clear
that this is the end of the road on modifications.

If it looks as though Quebec is going
to be prepared to go along with the document as it
now stands, presumably our next steps should be:

(1) Submission of the text to the
Cabinet.

As you know, heither the
text nor the results thus far of the process of
discussion have been in front of Ministers.
Dependent on the answer from Quebec, we would
seem to be at the point where Ministers ought
to look at the proposals before they go further.

(2) Transmission of the text to
the Premiers of the other
provinces.

A question here is how best
to communicate the text to the other Premiers.

5. CONFIDENTIAL

Probably the best course would be to do it under
a letter from you which would give a degree of
explanation as to the considerations that have led
to this document. Most of them will probably want
to have more explanation than can be given in a
letter and probably also the chance to talk about
particular points or problems that occur to them.
Your letter could perhaps say that I would, before
a certain date, get in touch with each Premier to
see whether he would like to have me (or a Minister ?)
come to talk about the text with him.

I shall still of course try to arrange
an interview with Mr. Barrett. I have not pushed
this during the last couple of weeks when the
situation has been so charged and so uncertain with
regard to the restraint programme and the provincial
response to it.

Original signed by
Original signé par

R.G. ROBERTSON
R.G.R.